Songster v. Beard

• Decision Date: 29 July 2014
• Docket Number: Civil Action No. 04–5916.
• Citation: 35 F.Supp.3d 657
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: Kempis SONGSTER v. Jeffrey A. BEARD, et al.

35 F.Supp.3d 657

Kempis SONGSTER

v.Jeffrey A. BEARD, et al.

Civil Action No. 04–5916.

United States District Court, E.D. Pennsylvania.

Signed July 29, 2014.

Douglas B. Fox, Cozen & O'Connor, Philadelphia, PA, for Kempis Songster.

J. Hunter Bennett, Thomas W. Dolgenos, District Attorney's Office, Philadelphia, PA, for Jeffrey A. Beard, et al.

MEMORANDUM OPINION

SAVAGE, District Judge.

The issue in this § 2254 habeas action is whether the holding in Miller v. Alabama¹ that a mandatory life without parole sentence for juvenile homicide defendants is unconstitutional may be applied retroactively to cases on collateral review. The Third Circuit has yet to decide. The Eleventh Circuit, the only circuit court to address the issue, held that Miller is not retroactive.² District courts and state courts are divided.

Those courts which have held that Miller applies retroactively have reached the result by different paths. Some based their decisions on the Miller Court's application of its holding to the companion case, Jackson v. Hobbs,³ which was on collateral review.⁴ Others engaged in the retroactivity analysis set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Among these, some found that Miller announced a new substantive rule qualifying for retroactive application under the first Teague exception.⁵ One court applied it retroactively as a “watershed rule of criminal procedure” qualifying under the second Teague exception.⁶

Courts holding that Miller is not retroactive have concluded that the new rule announced in Miller was a procedural one and did not qualify as a “watershed rule of criminal procedure.”⁷ The Pennsylvania Supreme Court has held that the rule is not retroactive to cases on collateral review. Commonwealth v. Cunningham, 81 A.3d 1 (Pa.2013).

We conclude that the Miller Court both applied the new rule to the case on collateral review and established a substantive constitutional rule that applies to all defendants similarly situated to the petitioner in Jackson, Miller' s companion case, who was on collateral review.⁸ Therefore, Songster, who was fifteen years old at the time he committed the murder for which he was convicted and sentenced to serve a life without parole sentence, is entitled to the relief mandated by Miller and must be resentenced.

Miller Applied Its Holding Retroactively

Only the Supreme Court can make a new rule retroactive. Tyler v. Cain, 533 U.S. 656, 662, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). It does so only “through a holding.” Id. at 663, 121 S.Ct. 2478. Nevertheless, it is not necessary for the Supreme Court to expressly state that the new rule is retroactive. Such an explicit statement “is not a sine qua non” of retroactivity for purposes of 28 U.S.C. § 2244(b)(2)(A). Id. at 668, 121 S.Ct. 2478 (O'Connor, J. concurring). The Court can do so by applying its holding logically. As Justice O'Connor explained, “the holdings must dictate the conclusion and not merely provide principles from which one may conclude that the rule applies retroactively.” Id. at 669, 121 S.Ct. 2478 (emphases in original).

Miller v. Alabama , a case on direct appeal, was argued with Jackson v. Hobbs , a case on collateral review. The Court applied the new rule to both cases. Had it not intended its holding to apply retroactively, it could have declined to take Jackson ; or, once having taken it, the Court could have then made it clear that its holding applied to Miller, but not to Jackson because the latter was on collateral review. Instead, it applied the new rule to Jackson and remanded his case for resentencing.

In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the ruling was applied retroactively to Roper who was on collateral review. The Court did not have to explicitly state that it was retroactive because it applied it to Roper.⁹

Similarly, when the Miller Court applied its holding to Jackson, it did more than announce a new rule. It made the new rule retroactive by applying it to the case before it.

It would be fundamentally unfair to find that because Jackson was paired with Miller he gets relief in the form of resentencing and the possibility of release while others similarly situated will not and will die in prison. Therefore, considering the Court's application of the new rule to Jackson, who was on collateral review, it logically follows that the Miller holding applies retroactively.

The Miller Rule is a Substantive Rule

Miller is not only retroactive because it was applied to a case on collateral review, it is retroactive under the Teague analysis. The new rule falls within the first Teague exception as a substantive rule.

In Teague, the Supreme Court announced the general rule that “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”489 U.S. at 310, 109 S.Ct. 1060. It then identified two exceptions when the new rule applies retroactively. Thus, a new rule applies retroactively to cases on collateral review only if it falls within one of the exceptions. Id. at 310, 109 S.Ct. 1060.

A new rule falling within the first exception is one that “places ‘certain kinds' of primary, private conduct beyond the power of the criminal law-making authority to proscribe.” Id. at 311, 109 S.Ct. 1060. The second exception is a “watershed rule of criminal procedure” that “requires the observance of ‘those procedures' that ... are implicit in the concept of ordered liberty.” Id. at 307, 109 S.Ct. 1060.

Since it created the two exceptions to the general rule of non-retroactivity in Teague, the Supreme Court has elucidated the retroactivity analysis. In Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), it clarified the difference between the two exceptions—the first one is a substantive rule and the second is a procedural rule. Substantive rules are applied retroactively. Id. at 351, 124 S.Ct. 2519. Procedural rules, on the other hand, are rarely, if ever, retroactive. Id. at 352, 124 S.Ct. 2519.¹⁰ Thus, the first step in the Teague analysis is to determine whether the rule is substantive or procedural.

A substantive rule is one that “places a class of private conduct beyond the power of the state to proscribe,” Saffle v. Parks, 494 U.S. 484, 494, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), or addresses a constitutional determination “prohibiting a certain category of punishment for a class of defendants because of their status or offense.” Penry v. Lynaugh, 492 U.S. 302, 329, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), overruled in part on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Such a rule is retroactive because the failure to apply it retroactively “necessarily carr[ies] a significant risk that a defendant stands convicted of ‘an act that the law does not make criminal,’ ” Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), or “faces a punishment that the law cannot impose upon him.” Summerlin, 542 U.S. at 352, 124 S.Ct. 2519.

Summerlin made clear that “[a] rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes.” 542 U.S. at 353, 124 S.Ct. 2519 (citing Bousley, 523 U.S. at 620–21, 118 S.Ct. 1604, and Saffle, 494 U.S. at 495, 110 S.Ct. 1257 ). The rationale for retroactivity of new substantive rules is that they “necessarily carry a significant risk that a defendant ... faces a punishment that the law cannot impose upon him.” Summerlin, 542 U.S. at 352, 124 S.Ct. 2519 (quoting Bousley, 523 U.S. at 620, 118 S.Ct. 1604 ).

The Miller rule has both substantive and procedural elements. Substantively, it bans mandatory life without parole sentences for juvenile homicide defendants. Procedurally, it mandates a minimal process for sentencing those in that class of defendants. The former is a new substantive rule of criminal law. The latter is an implementation of the substantive rule.

Miller struck down sentencing schemes that mandated life without parole for juveniles. In doing so, it declared that states could not impose such a sentence on a class of persons—juveniles convicted of murder. It eliminated the “significant risk” that a punishment that the law cannot impose would be imposed—a juvenile would be sentenced to die in prison when he would not otherwise be sentenced because of his peculiar characteristics associated with his youth.

In reaching its decision in Miller, the Court relied and built upon the rationale for the Roper v. Simmons¹¹ and Graham v. Florida¹² holdings, specifically stating that its decision was based upon two lines of precedent, one of which adopted “categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty.” Miller, 132 S.Ct. at 2463 (citing Graham, 130 S.Ct. at 2022–23 ). As the Court did when it categorically banned the death penalty for juvenile offenders in Roper and life imprisonment without the possibility of parole for juvenile non-homicide offenders in Graham, the Miller Court categorically banned a sentencing practice or scheme as applied to juveniles. In essence, the substance of the Miller rule is no different than the rules established in Roper and Graham, which were applied retroactively.¹³

The Miller court drew on Graham' s “likening life-without parole sentences imposed on juveniles to the death penalty itself.” Miller, 132 S.Ct. at 2466. After explaining why juveniles must be treated differently than adults, the Miller Court stated that in Graham “because we viewed this ultimate penalty for juveniles as akin to the death penalty, we treated it similarly to that most severe punishment. We imposed a categorical ban on the sentence's use, in a way unprecedented for a term of imprisonment.” Id. (citation omitted). These statements are an acknowledgment that there is no real difference between the...